Can You Fight Eminent Domain?

by: Michael Realbuto
14 Mar 2022

can you fight eminent domainEminent domain is the inherent right or power of the government to “take” private property for public use. In New Jersey, the State is vested with the power of eminent domain as an attribute of sovereignty, but the legislature may also delegate the power to other agencies and arms of the government (i.e., counties, municipalities, N.J. Dept. of Transportation, etc.). Notwithstanding this substantial power, the government may not take property for public use without paying the property owner “just compensation” (Emphasis added). There are several ways in which a property owner may fight the government’s use of eminent domain, the two most prevalent being (1) to challenge the taking itself and/or (2) to challenge the government’s offer of compensation.

First, it is important to remember the general procedure that applies in a New Jersey eminent domain case. New Jersey’s “The Eminent Domain Act of 1971” (the “EDA”) was intended to provide uniform legal requirements for all New Jersey entities vested with the power of eminent domain. In the most general terms, the EDA provides a four-step process:

(1)        An attempt to resolve the property acquisition outside of litigation through bona fide negotiations between the condemning authority (the “condemnor”) and the property owner (the “condemnee”);

(2)        If negotiations are unsuccessful, the condemnor must seek a final judgment from the Court duly authorizing the power of eminent domain;

(3)        Thereafter, Court would appoint three commissioners who engage in a non-binding arbitration related solely to the issue of “just compensation”;

(4)        If a party appeals the “commissioners’ award,” a trial is held on the issue of “just compensation” and results in a second final judgment.


This process allows a property owner to challenge the power of eminent domain at two different stages of the case: first, prior to the entry of the final judgment authorizing the power of eminent domain and, second, prior to the entry of the final judgment relating to the trial of “just compensation.” Prior to the first final judgment, a property owner may challenge the government’s right to take a particular piece of property on the grounds that the taking is not for “public use” or the taking is not necessary for the asserted “public use.” Challenging an entity’s right to take property through eminent domain is often a high hurdle for property owners because the tendency is to extend a liberal view toward the “public use” requirements and governmental entities are given substantial discretion in deciding whether a piece of property is necessary for the desired “public use.”  However, the court will hear any objections raised by the owner which question whether the condemning agency has a valid public purpose and, if so, whether that agency has properly exercised any eminent domain power which it possesses.  The decision by the court as to the right to condemn in New Jersey is a final judgment, appealable to the appellate courts as of right.

Following the first final judgment from a court authorizing the power of eminent domain, a property owner may still fight back by asserting that government’s offer of compensation does not reach the mandatory threshold of “just compensation,” as required by the United States and New Jersey Constitutions. When a piece of property is acquired by the State or a municipality by the power of eminent domain, the landowner is entitled to just compensation measured by “the fair market value of the property as of the date of the taking, determined by what a willing buyer and a willing seller would agree to, neither being under any compulsion to act.” State v. Silver, 92 N.J. 507, 513, 457 A.2d 463 (1983). It is often the case that the government’s offer of compensation falls well below the fair market value of the property. Accordingly, a property owner may challenge the offer by using expert testimony at a trial related solely to the issue of compensation.

Get Experienced Counsel For Your Fight Agasint Eminent Domain


In addition to the information mentioned above, one of the easiest ways for a property owner to begin the fight against eminent domain is to retain experienced counsel as early as possible. For over 50 years, McKirdy, Riskin, Olson & DellaPelle, P.C. has concentrated its practice in this special area of the law and has earned a reputation for persistently defending its clients’ constitutionally-recognized property rights. If you are confronted with the threat of eminent domain, please feel free to contact us for a free consultation.